Doe ex demise Shipp v. Rob

Warner, Chief Justice. This was an action of ejectment on the several demises of Elizabeth Warmiek, Joseph R. Shipp, and of Shipp in right of his wife, who had intermarried with Elizabeth Warmiek, the donor of the land, against the defendants to recover the possession of lot number two hundred and twenty-nine in the first district of Lee county. On the trial the jury found a verdict for the defendant. A motion was made for a new trial on the several grounds specified in the record, which was overruled by the Court, and the plaintiff excepted. The defense relied on by the defendant was the statute of limitations. The land was granted to Elizabeth Warmiek on the 13th December, 1836. Joseph R. Shipp intermarried with Elizabeth Warmiek on the 31st January, 1833. This suit was commenced on the 1st day of May, 1853. The defendant claimed a title to the lot of land under a deed made by Shotwell, dated 11th November, 1836. Wiley took possession of the settlement of land purchased of Shotwell, (of which it is claimed the lot in dispute constituted a part [599] thereof,) the latter part of the year 1836, and has occupied it ever since. Mitchell testified that in March, 1845, he saw such acts of ownership on the lot as the sign of timbers for cotton boxes having been got, and that there was a fence of Wiley’s inclosing from five to ten acres of the lot in dispute, that this fence inclosed a pond while the fence of Wiley, if it had continued straight on the line dividing lots two hundred and twenty-nine and two hundred and thirty, would have passed through the pond. Witness asked Wiley’s overseer why he made the fence around the pond, who answered that it was to avoid going through the water, that he did not wish to go through deep water, that it was Wiley’s land anyhow. That portion of the witness’ answer as to what Wiley’s overseer said was objected to and the objection overruled, which is assigned as error. The materiality of this evidence is not very apparent in regard to the main question of possession. Wiley’s fence was upon the land, and the statement of his overseer only gives the reason why it was there; that reason did not alter or change the location of the fence on the lot in dispute. But we think this statement of the overseer of Wiley, who was in possession of the land at the time, managing his property for him as his agent, was competent to prove the adverse possession of Wiley: Code, sections 3721, 2189. Shipp, as the husband of his wife, by virtue of his marital rights under the law as it existed at the time of the commencement of this suit, had the legal right to sue for the land and to reduce the same to possession as his property, and according to the ruling of this Court in Prescott & Pace vs. Jones & Peavy, 29 Georgia Reports, 58, he was the only person who could legally do so, as the title was in him, and not in his wife. The mistake of the plaintiff in error is in the assumption that, under the law as it then existed, that the wife had a separate estate in the land, independent of the marital rights of her husband, against which the statute of limitations did not run during her coverture. In view of the facts of this case, as disclosed by the record, and the [600] charge of the Court to the jury as to the law applicable thereto, we find no error in the refusal of the Court to grant a new trial: See Wiley vs. Warmock et al., 30 Georgia Reports, 701. Let the judgment of the Court below be affirmed.